Estate litigation is on the increase in NSW, with the court reporting for the last statistics an increase of over 9% of cases being filed. Once a loved one dies, it is only then that family members and close relatives may become aware of the terms of the will of the deceased. Generally speaking, most family members are entitled to see a copy of the last valid will, this can be requested by simply writing to the executor or to the executor lawyers. Unless the person requesting is not a valid person under the NSW legislation, a copy of the will should not be reasonably refused.
On reading the will, if a family member feels they have been unfairly treated or the will is invalid, there are several avenues available. The list below is not exhaustive but these are the more common pathways we often see in estate litigation.
- Contesting a Will: If you believe that a will is invalid or unfair, or you were left out of a will entirely, you may be able to contes the will and seek provision. We see this commonly with one child being left out for various reasons or in cases of blended families. In some cases, you may have been promised a certain parcel of land or money that did not transpire, or that was sold before death resulting in no funds available, then you may be able to contest the will. This is called a Family Provision Claim. These are by far the most common form of estate disputes before the Supreme Court of NSW. There is a lengthy list of persons that are eligible to apply for Family Provision under the NSW legislation and this includes a spouse or de facto spouse and children of he deceased.
- Defending a Will: If you are the executor or beneficiary of a will that is being contested, you need to seek immediate legal advice to obtain representation to defend the will. In most cases, the estate will fund he legal fees for these claims. Seek advice early and as soon as you are notified of a potential claim.
- Estate Disputes: In many cases, family members may be concerned about the drafting of the last will, especially if it was updated just prior to death. In these cases it can be argued that there was undue influence (duress), fraud (fake signatures for example), and lack of capacity. If there is a claim the will was invalid, it requires an application to the Supreme Court and a Judge will determine the validity of the will in question. Often expert evidence is required – for example by a medical practitioner.
- Mediation and Negotiation: In many estate disputes, one of the first steps is to attempt to negotiate with the other party to see if an agreement can be reached. This can be particularly helpful where its clear there was an error on the will or if an asset was sold before death and is no longer available to a beneficiary. Mediating the dispute and reaching an amicable settlement can assist to save time and legal fees for all parties.
Frequently Asked Questions
What are the grounds for contesting a will? A will can be contested on several grounds, including lack of testamentary capacity, undue influence, fraud, and improper execution. It can also be contested for failure to make provision to a relevant eligible person.
How long do I have to contest a will? The time limit for contesting a will varies depending on the type of claim and jurisdiction. In most cases it is 12 months from the date of death in NSW. It is important to seek legal advice as soon as possible to ensure you do not miss any deadlines.
What if I can’t afford legal fees? There are several options available to contest estates and in some cases the estate can pay the costs of any representation. It’s important to schedule an initial meeting in the first instance to discuss your specific case.